DACA Recipients Look To Supreme Court For Hope

Nov 12, 2019
Originally published on November 12, 2019 1:40 pm

The U.S. Supreme Court hears arguments Tuesday in a highly anticipated set of cases that threatens the legal status of some 700,000 young immigrants — often called DREAMers — who were brought to the U.S. illegally as children. It's a program that President Trump tried to rescind seven months after taking office, only to have the lower courts block his action.

In 2012, President Barack Obama put the program in place to temporarily protect these young people from deportation. If you were in school, were a high school graduate, or had been honorably discharged from the military, and if you passed a background check, you were eligible for temporary legal status and a work permit, renewable every two years. The program is formally known as the Deferred Action for Childhood Arrivals, or DACA.

"Rest easy"

President Trump, from the beginning, seemed conflicted about DACA, caught between the mass deportations he promised his political base during the campaign and his admiration for what so many of the DREAMers have accomplished.

These DACA recipients, who come from around the world, have become teachers, psychologists, business owners and doctors.

Their successes illustrate the reason that Republicans and Democrats in Congress tried to work out a DACA deal that Trump would sign in 2017. "Rest easy," Trump told the DREAMers in an April 2017 interview with The Associated Press.

Trump "kept waffling back and forth"

But he "kept waffling back and forth over what he would be willing to accept, and wouldn't be willing to accept," in terms of a DACA deal, says Julie Hirschfeld Davis, co-author of Border Wars and congressional editor for The New York Times.

At the end of the day, Trump's indecision was so frustrating for Senate Republican leaders that they worked out a compromise with Democrats on their own. Just hours before the deal was to come up for a vote on the Senate floor, however, the administration branded it unacceptable in a midnight press release, according to Davis.

Shortly thereafter, then-Attorney General Jeff Sessions announced that the DACA program would end because, he said, it was illegal and unconstitutional to begin with.

"They are dead wrong ..."

"They are dead wrong when they say that the DACA program adopted by the Obama administration was illegal," says Ted Olson, who served as solicitor general in the George W. Bush administration and is representing DACA plaintiffs in the Supreme Court.

Olson points to programs similar to DACA that were put in place by every other president dating back to Dwight Eisenhower. These programs granted temporary legal status, for instance, to 600,000 Cubans in the 1950s and '60s and 1.5 million other undocumented immigrants under another program in the Reagan and George H.W. Bush administrations.

Janet Napolitano was secretary at the Department Homeland Security when DACA was created. "Not only is there a long history of deferring action for particular groups under the immigration laws," says Napolitano, "but there's the whole concept of prosecutorial discretion, which gives the executive branch the authority to make decisions about who is going to feel the full brunt of the federal government in an enforcement proceeding, versus not."

Prosecutorial discretion vs. "complete suspension of the law"

"The Supreme Court has long recognized that there may be a line between prosecutorial discretion, not enforcing the law in every instance, and a complete suspension of the law," counters John Eastman, a constitutional law professor at Chapman University who has filed a brief siding with the Trump administration in the DACA case.

Eastman maintains that DACA is different from other, similar programs in prior administrations, citing DACA recipients' benefits — including work authorization, Social Security benefits and tax credits on tax returns — as different from prior administrations.

Napolitano replies that granting temporary legal status to DACA recipients enables them to work, and when they work, they must pay into Social Security and pay taxes.

Indeed, government statistics indicate that some 91% of DACA recipients have jobs, allowing them to support their families and generating, over a 10-year period, nearly $60 billion in federal tax revenue that the government stands to lose if the DACA program is abolished.

Is this illegally arbitrary?

Napolitano is no longer DHS secretary. She is the president of the giant University of California system, including 1,700 students with DACA status. And in that capacity, she is challenging Trump's revocation of the DACA program as so arbitrary and unsupported by stated reasons and data that the revocation is itself illegal.

"If they had done a full policy review and had set forth all their reasons and demonstrated that they had weighed the pros and cons and just came to a different conclusion, they might be able to prevail in this case," says Napolitano. "But they didn't do that. Instead they just simply issued basically a one-sentence order that said since DACA is illegal or was illegal, we're going to undo it."

Sometimes lost in all the legal discussion are the people whose lives will be affected by the Supreme Court's decision in the DACA case. DACA recipient Mitchell Santos Toledo, brought to the U.S. when he was 2 and now in his last year at Harvard Law School, remembers crying when he received his Social Security card. "This is home for us. It's not a place I call home. It is home," he says.

A first-of-its-kind video friend of the court brief filed by United We Dream seeks to highlight other DACA stories. "We got DACA and it's like we got wings. I am a mom, a wife and a business owner," says Angelica Villalobos, who owns an auto repair shop.

"I worked on a project that won two Grammys, " says Emmanuel A. "I did some fieldwork picking strawberries. I decided to become a teacher so that students could have that role model," says Maricruz R.

Public support for DACA is illustrated by a distinct imbalance in friend of the court briefs filed in the case. Six have been filed supporting the administration's position. They include briefs filed by conservative organizations and individuals and a brief filed by 12 Republican-dominated states.

A total of 35 briefs have been filed in support of DACA. Among them are briefs filed by higher education associations, health professionals and even briefs filed by more than 145 corporations and business organizations arguing that if the court were to side with the Trump administration and abolish DACA, their companies and industries would be significantly disrupted.

A decision on DACA is expected by summer, just as the 2020 election is kicking into high gear. Republicans in Congress may be hoping that the high court will let them off the hook and rule in favor of DACA.

Whether the current Supreme Court, dominated by conservative justices inclined to defer to presidential power, fulfills those hopes, however, remains to be seen.

Copyright 2019 NPR. To see more, visit https://www.npr.org.

NOEL KING, HOST:

Today, the Supreme Court hears arguments in a case that threatens the legal status of around 700,000 young people. They're often called DREAMers. These are kids who were brought to the U.S. illegally by their parents. President Trump tried to rescind DACA after he took office, but the lower courts blocked him. NPR's legal affairs correspondent Nina Totenberg has the story.

NINA TOTENBERG, BYLINE: In 2012, President Obama put in place a program to temporarily protect young people brought to the country illegally as children. If you were in school or a high school graduate or had been honorably discharged from the military and if you passed a background check, you were eligible for temporary legal status and a work permit - renewable every two years. The program is formally known as Deferred Action for Childhood Arrivals, or DACA. The deferred action is deferred detention and deportation. President Trump, from the beginning, seemed conflicted about DACA, caught between the mass deportations he promised his political base during the campaign and his admiration for what so many of the DREAMers have accomplished.

TAZ A: My dad always told me when he came to this country, he could never restfully lay his head down at night. And it wasn't until that I had received my DACA card that he was able to breathe.

DIVINE: Next thing you know, I was choosing from different universities, acceptances and I was like, hey, I can dream. Like, I can go to school.

MARTIN BATALLA VIDAL: I work in a - it's a rehab/nursing home for traumatic brain injury. I would not be there if it wasn't for DACA.

MARICRUZ R: I did some fieldwork picking strawberries. And I decided to become a teacher so that students could have that role model.

EMMANUEL A: I worked on a project that won two Grammys.

ANGELICA VILLALOBOS: I am a mom, a wife and a business owner. We got DACA and it's like we got wings.

MITCHELL SANTOS TOLEDO: The U.S. is us, and this is home for us. It's not a place I call home. It is home.

TOTENBERG: Those were DACA recipients - Taz A, a junior at the University of Oklahoma - Divine, a graduate student at UC Davis - rehabilitation aid Martin Batalla Vidal, teacher Maricruz R, musician Emmanuel A, auto repair shop owner Angelica Villalobos, and Harvard Law student Mitchell Santos Toledo. They were born in Bangladesh, Mexico, Nigeria and the Philippines. Their success illustrates the reason that Republicans and Democrats in Congress tried to work out a DACA deal that President Trump would sign in 2017. Rest easy, the president told the DREAMers.

JULIE HIRSCHFELD DAVIS: But he kept waffling back and forth about what he would be willing to accept and what he wouldn't be willing to accept.

TOTENBERG: Julie Hirschfeld Davis, author of "Border Wars," says that at the end of the day, Trump's indecision so frustrated Senate Republican leaders that they worked out a compromise with Democrats on their own. Just hours before the deal was to come up for a vote on the Senate floor, however, the administration branded it unacceptable. Shortly thereafter, Attorney General Jeff Sessions announced the DACA program would end because, he said, it was illegal and unconstitutional to begin with.

(SOUNDBITE OF ARCHIVED RECORDING)

JEFF SESSIONS: Simply put, if we are to further our goal of strengthening the constitutional order and the rule of law in America, the Department of Justice cannot defend this overreach.

TED OLSON: They are dead wrong when they say that the DACA program adopted by the Obama administration was illegal.

TOTENBERG: That's Ted Olson, who served as solicitor general in the George W. Bush administration. Today, in the Supreme Court, he'll be representing the DACA plaintiffs. Olson points to programs similar to DACA that were put in place by every other president dating back to the Eisenhower administration, programs that granted temporary legal status to millions over time. Janet Napolitano was secretary of Homeland Security when DACA was created.

JANET NAPOLITANO: Not only is there a long history of deferring action for particular groups under the immigration laws, but there's the whole concept of prosecutorial discretion, which gives the executive branch, you know, the authority to make decisions about who is going to feel the full brunt of the federal government in an enforcement proceeding versus not.

TOTENBERG: None of the Trump administration's DHS secretaries involved in revoking DACA would agree to be interviewed for this broadcast. So we turn to John Eastman, a constitutional law professor at Chapman University, who filed a brief siding with the Trump administration in the DACA case.

JOHN EASTMAN: The Supreme Court has long recognized that there may be a line between prosecutorial discretion, not enforcing the law in every instance, and a complete suspension of the law.

TOTENBERG: Eastman maintains that DACA was different from other, similar programs in prior administrations.

EASTMAN: Not only did it say we're not going to enforce the law as it's written, but we're going to give out benefits, work authorization, Social Security benefits, tax credits on tax returns. None of those are a permissible exercise of prosecutorial discretion, so I do think they are different in kind.

TOTENBERG: Janet Napolitano counters that granting temporary legal status to DACA recipients enables them to work, and when they work, they must pay into Social Security and pay taxes.

NAPOLITANO: Something like 91% have jobs. If DACA is rescinded, there are estimates that the government would lose some $60 billion in federal tax revenues.

TOTENBERG: Napolitano is no longer DHS secretary. She's president of the giant University of California system, including 1,700 students with DACA status. And in that capacity, she's challenging President Trump's revocation of the DACA program as so arbitrary and unsupported by stated reasons that the revocation is itself illegal.

NAPOLITANO: If they had done a full policy review and had set forth all their reasons and had demonstrated that they had weighed the pros and cons and just came to a different conclusion, they might be able to prevail in this case, but they didn't do that.

TOTENBERG: Whether the current Supreme Court, dominated by conservative justices inclined to defer to presidential power, will buy that argument remains to be seen. Nina Totenberg, NPR News Washington.

(SOUNDBITE OF RJD2, STS AND KHARI MATEEN SONG, "SEE YOU LEAVE") Transcript provided by NPR, Copyright NPR.